Moon Corrugated Container Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1964

150 N.L.R.B. 766 (N.L.R.B. 1964)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 10, in writing, within 20 days from
the receipt of this Decision , as to what steps the Respondent has taken to comply
herewith.14
14 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 10, in writing , within 10 days from
the date of this Order , as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Packinghouse , Food and
Allied Workers, AFL-CIO, or in any other labor organization of our employees,
by discriminating in regard to hire, tenure of employment , or any term or condi-
tion of employment of any of our employees.
WE WILL offer to Elvis J. Barnes immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT interrogate our employees concerning their union activities in
a manner constituting interference , restraint , or coercion in violation of Sec-
tion 8 ( a)( I) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise ' of their right to self-organization , to join or assist the
aforesaid Union or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to re-
frain from any or all such activities.
LUMBERJACK MEATS, INC., D /B/A LEEDS PACKING COMPANY,
Employer.
Dated------------------ By-------------------------------------------
(Representative ) ( Title)
NOTE.-In the event the above -named employee is presently serving in the Armed
Forces of the United States, we will notify him of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. Trinity 6-3311, Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
Moon Corrugated Container Corporation and Paper Products
and Miscellaneous Chauffeurs , Warehousemen and Helpers,
Local 27, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and'Helpers of America . Case No. 2-CA-10022.
December 31, 1964
DECISION AND ORDER
On October 15, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 71.
MOON CORRUGATED -CONTAINER CORPORATION 767
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending dismissal of the complaint in its entirety as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General' Counsel filed a statement of exceptions to the Trial .Ex-
aminer's Decision and brief in support.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and-finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner.' Accordingly, we shall dis-
miss the complaint. -
[The Board dismissed the complaint.]
We ,find it unnecessary to our decision and specifically do not adopt the gratuitous
remarks of the Trial Examiner reflecting on ;unions in Metropolitan New York and the
"Investigatory machinery" of this Agency..
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with the General Counsel and the Respondent represented, was
heard before Trial Examiner John F . Funke at New York, New York, on Septem-
ber 2 , 1964 . Upon a charge filed May 18, 1964 , by the above -named labor organiza-
tion, herein Local 27 or the Union , against Moon Corrugated Container Corporation,
herein Moon or the Respondent , the General Counsel issued a complaint alleging
Respondent violated Section 8(a)(3) and (1) of the Act by discharging one em-
ployee . The answer denied the commission of any unfair labor practice.
At the conclusion of the hearing the parties reserved the right to file briefs.,
Upon the entire record in this case and from my observation of the witnesses, I
make the following: I
FINDINGS AND CONCLUSIONS -
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in the manufacture , sale, and
distribution of corrugated containers . During the fiscal year ending July 1, 1963,
Respondent purchased and caused to be transported to its Brooklyn plant materials
valued in excess of $50,000 from States of the United States other than the State of
New York.
Respondent is an employer engaged in commerce within the, meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Local 27 is a labor organization within the meaning of the Act.
mI. THE UNFAIR LABOR PRACTICES
A. The facts
Joaquin Gutierrez , the sole alleged- discriminatee , was employed by Moon as a
shipping clerk in August 1963 and discharged May 15, 1964. Respondent contends
that Gutierrez was a supervisor within the meaning of the Act and the General
775-G92-65-vol. 150-50
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel denies that contention. Gutierrez received a salary of $65 per week when
first employed and received overtime pay 1 and after 2 or 3 weeks was advanced to
$80 without overtime.2 During the period of Gutierrez' employment Respondent
had two collective bargaining contracts, one with Local 27 which covered the drivers
and helpers and another with Electrical, Production and Novelty Workers Union,
Local 118, AFL-CIO, which covered a unit 'of "inside" employees. Concededly
Gutierrez was not covered by either contract during his employment with Moon.,
(Respondent's Exhibits Nos. 1 and 2.)
Gutierrez, who had some difficulty with the language, testified that he made out
the bills of lading and receipts, handled and checked the merchandise which was
loaded on the trucks, made up the drivers' routes,3 and sometimes helped with the
loading. He testified that he had no authority to hire or fire employees, although he
had hired his son for 1 day's employment as a casual laborer? -
On May 11, 1964, Gutierrez signed an application for membership in Local 27 of
his own volition and gave it to his son to mail to the Local. (General Counsel's
Exhibit No. 2.) The crux of the case focuses on the morning of May 15.
Antonio Leggio, business agent for Local 27, testified that he received Gutierrez'-
application on Wednesday, May 13, and that he went to the plant on the 15th "to
straighten this application out." His own testimony is the best record of what took
place. The pertinent part reads: -
Q. (By the TRIAL- EXAMINER.) All right, when-you got there what happened?
A. I went there and seen Mr. Kleinman.
"I got an application here from Gutierrez," whatever it is. I said, "You got
the man working here."
He said, "The man is fired 2 weeks ago?"
"What the hell is he doing here?"
"He is working. About 11 o'clock he will be here." -
So when'I'got there, it was about ten, half past nine , something like-that, he
said, "The fellow won't be here until 11 o'clock."
So we start talking to each other off the record about this fellow here. I said;
"Will you leave word when this fellow comes in, I would like to see this fellow
here."
So he left word to Moe. He said, "When he comes in, tell him to come into
the office."
Finally, the fellow come in. He said, "Hello, Tony." I said, "Let's get this
thing straight. From where do you know me?" -
"I know you from-the drivers here." - -
"Did-you ever see me before?"
- "Never."
And Dave was there as a witness because he was facing me. I said , "The firm
told me you were fired two weeks ago."
When he heard this here, he start arguing with Kleinman there. "'You never
told me I was fired two weeks ago., If I was fired, why should I be here for two
more weeks?" - ' '
I said, "Dave, I didn't bring this fellow in,for firing. Let's be calm. -If the
guy is fired, pay him off.",
That's the whole story.
1 Gutierrez denied that he ever received overtime and stated that he complained to
management about this Since management produced its payroll records respecting
Gutierrez at the hearing and the General Counsel did not elect to examine them, I credit
the testimony of Morris Klein, office manager, that Gutierrez received overtime during
the period he was paid $65 per week (Respondent's payroll records were offered and
withdrawn by'consent.) - -
2 The increase did not indicate a promotion to Gutierrez It was an arrangement of
convenience by which he received a straight salary roughly equivalent to his $65 per
week plus average overtime. He was not docked for time off under the new arrangement.
s There is testimony that Gutierrez was-inexperienced and did not know how to issue
proper routings and that this was a cause for discharge. Respondent, however, did not
hire Gutierrez as an experienced shipping clerk with a knowledge of the city so his lack
of experience was known to Respondent at the time of hiring.
{ The record indicates that casual temporary employees were hired to assist In loading
when needed I do not consider that the hiring or laying off of such employees conferred
supervisory status within the meaning of the Act. David Kleinman, vice president of
Moon, testified that he consulted with his partner before hiring any regular employee
MOON CORRUGATED CONTAINER-CORPORATION , 769
Q. Did Mr . Kleinman give any reason to you or to anyone in your presence
as to why Mr. Gutierrez was being fired or had been fired?
A. No, sir, no reason at all.
Q. Was there any mention of the application card during any of this
conversation?
A. Well, while we had, Gutierrez in front of us, I told, him, ,"I represent you
on account of this application I received. That's why I'm here, to get together
with the firm with reference to your wages and everything."
That's all.
Gutierrez testified that when he reported to work on Friday, May 15, he was told
by Morris Klein, the office manager, that he was wanted in Ronda's office . He went
to the office and found Leggio , Kleinman, and Ronda , Kleinman 's partner , present.
Leggio showed him the application and Gutierrez told him that he had made it out
and mailed it in to the Local . His testimony then reads: -
The. WITNESS: He asked me, "Do you know you'are fired? You are fired
15 days ago."
So I was surprised myself, because I 'never heard about that. I told him,
"This is the first time I hear something like that."
He said, "Mr. Kleinman said you were notified two weeks ago that you were
fired from the job because he hired a new man here , somebody is going to come
here and work and take your job."
So I told Mr.'Leggio, I told him, "Do you think if Mr. Kleinman tell me
15 days ago, that I am going to have the nerve to stay here and working for
15 days? If he tell me something like that, I don't have to stay here for noth-
ing. _ What kind of man do you think I am?"
.1 called him a liar, in front of everybody. _
Q. You called who a liar?
A. Mr. Kleinman , because he told something like that , that wasn't true.
Q. What happened after that? ,
A. So Mr. Kleinman said, "You remember, I told you."
I said, "You are a liar. You never told me anything like that."
So. Mr. Kleinman and Mr. Leggio continued discussing that. After that
Mr. Leggio asked Mr. Kleinman, "You fired him because of the union, because
he wanted to join the union?"
Mr. Kleinman said , "Yes, I fired him because he wanted to join'the union."
Then Mr. Ronda was next to him. Then Mr. Ronda said, "No, no, not be-
cause of the union. Because he was fired before, because we told him before
that he was fired."
Q. What happened after that?
A. So after that, so I walked out. They don't want me anymore, so
I walked out.
Q. Did Mr. Leggio go with you?
A. Yes. We walk out together.
Mr. DAVIDSON: I have no further questions.
Kleinman testified that at the time Respondent . hired Gutierrez the business was
small and that he thought they could break Gutierrez into being a good shipping
clerk. He stated that the drivers (no driver was called to testify ) complained that
Gutierrez was routing them inefficiently so that they were returning with half loads.
Kleinman continued with Gutierrez until "I had to get rid of him or else the drivers
wouldn't do nothing."
When Leggio came in on May 15 he asked Kleinman if he had fired him because
he joined the Union. Kleinman denied that charge and told Leggio he had fired
Gutierrez 2 weeks ago .5 ,
B. Conclusions
I find that Gutierrez was an employee of Moon and not a supervisor within the
meaning of the Act. Quite clearly he performed the usual duties of a shipping clerk
and such directions as he gave the drivers related to routing, a routine and per-
functory exercise of authority . - His duties were so insubstantial in relation to the
Respondent 's operations that Kleinman testified that Moon operated for -several
e Kleinman's testimony: -
So I told him he was fired . , He [Gutierrez ] in turn told me he would like to have
two weeks roughly to try to get a job, simply because he comes in at 11, 11:30 around
the vicinity, he would have all morning to look for a job. And that's what happened.
That's exactly it
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months without a shipping clerk and suffered no loss. It is highly improbable that
Respondent would have hired an admittedly inexperienced shipping clerk as super-
visor of the drivers.
As to the allegation that Gutierrez was discharged because he sought to join
Local 27, the sole evidence is the testimony of Gutierrez himself and this is con-
fined to the conversation which took place between Gutierrez and Kleinman in the
presence of Ronda and Leggio on May 15. It is to be noted that Gutierrez' testi-
mony that Kleinman told Leggio he was fired because he wanted to join the Union
was not corroborated by Leggio who, as a representative of the Charging Party,
might be presumed to be favorable to Gutierrez .6 Nor does it seem other than
totally irrational that Kleinman, accustomed to dealing with unions, would, after
having been told the purpose of Leggio's visit, wait until Gutierrez appeared and then
tell Leggio that he had fired Gutierrez because he wanted to join the Union. It may
be a suspicious circumstance that Kleinman informed Leggio that Gutierrez had been
fired "2 weeks ago" on the very morning that Leggio approached him to bargain
concerning Gutierrez' wages and conditions of employment and to advise him that
Gutierrez had applied for membership. Resorting to the cliche that suspicion is not
proof I cannot find that this circumstance and Gutierrez' inherently incredible testi-
mony are sufficient to support a finding of violation and in the words of Ethel Barry-
more, "That's all there is, there isn't any more."
Respondent had contracts with two unions, there is no evidence of hostility toward
union membership and the fact that Respondent might have to bargain for one more
employee implied no grave threat to its economic posture.? There is evidence of a
lack of candor on the part of most of the witnesses to this proceeding but to support
the General Counsel I would have to credit Gutierrez in fulls Neither his testi-
mony nor his demeanor was worth such an extension of credit. This case does not
merit extended discussion and it appears to be another in that crescive class of cases
where the investigatory machinery of the Agency has failed to. resolve a simple
credibility issue and it has been sent to hearing for that lone purpose.
Upon the foregoing findings of fact and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
Respondent has not engaged in unfair labor practices within the meaning of Sec-
tion 8 (a)(3) and (1) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
6It Is not an Irrebuttable presumption, at least In the Metropolitan area of New York,
that an agent of a labor organization will favor employees or members as against employers.
7 There is testimony indicating that Moon paid the replacement for Gutierrez $125 per
week.
8If the case were to rest on speculation, there is the possibility that Gutierrez, having
been notified of his discharge prior to May 15, applied for membership In Local 27 for
such protection as it might afford him. Kleinman's testimony as to the reason Gutierrez
gave him for requesting a postponement of the discharge for 2 weeks is a plausible one.
New York Newspaper Printing Pressmen's Union No . 2, AFL-
CIO and The New York Times Company and New York Stereo-
typers' Union No. 1; Publishers ' Association of New York
City, Parties in Interest . Case No. 2-CD-288. December 31,
196
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the filing of charges under Section 8(b)
(4) (D) by The New York Times Company (herein called the Em-
150 NLRB No. 69.